While you may be thinking of the Stephen Spielberg movie, the title refers to the litigation over Governor Abbott’s Executive Order, GA-38, which prohibited masks,  E.T. et. al. v. Ken Paxton, et. al. 2022 WL 2914732 (5^th Cir. July, 25, 2022).  The appeal to the 5^th Circuit has been decided and E.T. has been sent home. 

As everyone recalls, GA-38 provides that “[n]o governmental entity, including a ... school district ..., and no government official may require any person to wear a face covering or to mandate another person wear a face covering.” GA-38 has “the force and effect of law.” In response, 14 plaintiffs, who were “students with disabilities and underlying medical conditions which carry an increased risk of serious complications or death in the event that they contract COVID-19.” It named as defendants Governor Abbott, the TEA, and TEA Commissioner Mike Morath.

The original complaint included three claims: (1) violation of the Americans with Disabilities Act (“ADA”) against Abbott and Morath in their official capacities, (2) violation of Section 504 of the Rehabilitation Act of 1973 against all defendants, and (3) federal preemption under the American Rescue Plan Act of 2021 (“ARP Act”) against all defendants. plaintiffs requested declaratory and injunctive relief.

After denying plaintiffs’ request for a temporary restraining order and preliminary injunction, the district court held a bench trial and entered a permanent injunction and final judgment against the Attorney General. The court declared that GA-38 violated Title II of the ADA and Section 504 of the Rehabilitation Act. It further held that, insofar as it applied to school districts, GA-38 was preempted by the ADA, Section 504, and the ARP Act. The court enjoined the Attorney General from enforcing the Executive Order. The Attorney General sought a stay pending appeal, which the district court denied, but the 5^th Circuit granted pending the appeal. 

The 5^th Circuit issued a ruling on July 25, 2022 reversing the district court and systematically dismantling every argument advanced by the plaintiffs.  First, the court ruled the plaintiff’s had no standing to sue, based upon analysis of the judicial factors establishing standing, which are that the plaintiff suffered an invasion of a legally protected interest that is ‘concrete and particularized’ and ‘actual or imminent, and not conjectural or hypothetical.

Plaintiff’s increased risk of contracting COVID-19 failed to satisfy the requirements of standing as they were purely speculative and failed to account for other risk reduction measures schools should take. Risk of complications from contracting COVID-19 similarly failed to meet the “imminence” standard. 

The court noted that at successive stages of the litigation, plaintiffs changed their standing theory from “increased risk” to “reasonable access” to “equal access,” and the court held that neither the ADA nor Section 504 creates a legally protected interest in equality by itself. The statutes protect reasonable access to covered facilities and benefits and require covered facilities to provide reasonable accommodations.  ADA plaintiffs aren’t necessarily injured every time their method of access differs from that of their non-disabled peers—they’re injured when they are denied the reasonable access the statutes protect, even if the accommodations are not those preferred by the plaintiff.

The plaintiffs alleged the denial of individualized decision-making, but the court found that none had requested individualized accommodations.  Finally, the 5^th Circuit held that the failure to sue the school districts, the regulated 3^rd parties, defeated the redressability prong of standing, as enjoining the Texas Attorney General from enforcing GA-38, left the schools free to require or to not require masks. ”None of plaintiffs’ schools require masks today. And we could not enjoin those schools to impose mask mandates if we wanted to because plaintiffs did not sue them. That alone proves that plaintiffs’ claims are not redressable.”  The 5^th Circuit vacated the district court’s injunction and remanded the case to the district court with instructions to dismiss the case for lack of jurisdiction. The appeals court vacated the district court’s injunction and remanded the case to the district court with instructions to dismiss the case for lack of jurisdiction based upon a lack of standing.

For further information or for any assistance on Title IX matters or matters relating to special education, Section 504 or the ADA, please contact us.

Author:  Hans Graff